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REPORT ON THE COMPENSATION OF MILITARY JUDGES

VIEWS: 8 PAGES: 18

									    Military Judges                           Comité d’examen de la
Compensation Committee                    rémunération des juges militaires




      REPORT ON THE COMPENSATION OF
             MILITARY JUDGES




                         SEPTEMBER 2008
                                                                                        1


       REPORT OF THE MILITARY JUDGES COMPENSATION COMMITTEE


The Military Judges Compensation Committee was established in accordance with
s. 165.22 of the National Defence Act, R.S.C. 1985 c. N-5 and s. 204.23 of the
Queen’s Regulations and Orders, P.C. 2000-1419 dated September 13, 2000.

Its purpose is “to inquire into the adequacy of the remuneration of military judges.”

1. THE MANDATE

This Committee, as the two previous ones (established in 2000 and 2004), is
mandated to consider in conducting its inquiry:

204.24 (3):

   a) the prevailing economic conditions in Canada, including the cost of living and
      the overall economic and current financial position of the federal government;
   b) the role of financial security of military judges in ensuring judicial
      independence;
   c) the need to attract outstanding officers as military judges; and
   d) any other objective criteria that the Commission considers relevant.


2. HEARINGS

Pursuant to subsection 204.24(1) of the Queen’s Regulations and Orders for the
Canadian Forces, P.C. 2000-1413 (“the QR&O”), the present quadrennial inquiry into
the remuneration of military judges was to have commenced on September 1, 2007 and
to have been completed within nine months of that date. However, the members of the
Committee nominated by the Government of Canada and by the Military Judges were
not appointed until December 3, 2007, and the Chair of the Committee was not
appointed until January 29, 2008. Accordingly, with the consent of the Minister and of
the military judges and in accordance with subsection 204.24(2) of the QR&O, the
Committee postponed the commencement of its quadrennial inquiry to January 29,
2008.

Upon its nomination, the Committee established a process in consultation with
counsel representing the Military Judges and the Government of Canada.

Both parties provided thorough and helpful written submissions as well as reply
submissions, with extensive supporting documentation. This was followed by a
bilingual hearing held in Ottawa June 10-11, 2008 with simultaneous interpretation
available.
                                                                                                            2


The Committee benefited from submissions on behalf of both parties of the highest
calibre and quality – Me Raynold Langlois and Me Chantal Chatelain on behalf of
the military judges, and Ms. Anne Turley on behalf of the Government of Canada –
for which the Committee is most thankful. Counsel for both parties are to be
commended.

The Committee also wishes to express its thanks for the able assistance it has
received from its Executive Secretary and Counsel, Me Maxime Faille of Gowling
Lafleur Henderson LLP.

In addition to receiving the written and oral submissions of the parties, the
Committee reviewed and provided to the parties for comment the Report of the
Honourable George Adams, Q.C. into the compensation of Federal Court
prothonotaries (“the Adams Report”). The report of the third quadrennial Judicial
Compensation and Benefits Commission in relation to all federally-appointed judges
other than military judges, chaired by Sheila Block (“The Block Commission”), was
provided to the Committee by counsel for the military judges shortly after the June
10, 2008 hearing. However, neither party asked to address any matters arising from
the Block Commission report.

3. A DE NOVO INQUIRY

The Committee is of the view that its task is to conduct the inquiry as to the
adequacy of the remuneration of the military judges, taking into consideration the
four criteria set out above, de novo, and rejects the argument made by the
government of Canada that there is a “rebuttable presumption that the amount of
compensation recommended by a previous salary commission and accepted by the
government was adequate to preserve and maintain a state of financial security for
judges”1 for the following reasons.

First, the mandate of the Commission specifically directs it to consider “the
prevailing economic conditions in Canada” which, of course, refers to the economic
conditions prevailing at this time and which may have been different under the
mandate of previous Commissions.

Second, both parties have submitted that the 2000 and 2004 Reports should not be
followed since the “only other criterion that was considered under [“other objective
criteria”] was whether parity was required, and if so what was the appropriate
comparator group. Indeed, in the last review, this factor became the dominate point
of discussion and consideration, giving it a weight that is not merited when viewed
from the overall mandate of the Committee and the full set of factors it is required to
consider.”2 This being said, in its submissions, the government of Canada agreed


1
        Submission of the Government of Canada to the Military Judges Compensation Committee, May 8, 2008
(“Submission of the Government of Canada”), at p. 5, para. 18.
2
        Ibid., at p. 20, para. 70.
                                                                                            3


with the result reached by the 2004 Commission as to the salaries it set for the
Military Judges.

4. MILITARY JUSTICE

Military justice is recognized in the Canadian Charter of Rights and Freedoms (subs.
11 (f)) and it is part and parcel of the federal justice system of Canada. The military
courts are presided over by judges nominated by the Canadian government with
jurisdiction to conduct courts martial, both in Canada and abroad. Their decisions
are appealable to the Court Martial Appeal Court of Canada, a civilian court
composed of Federal Court and Superior Court judges.

Both parties have described in considerable detail the role and functions of military
judges and it is not necessary for our purposes at this stage to reproduce them. It
may be more useful to refer to those in due course.

In essence, however, the principal role and functions of military judges are to preside
at courts martial with specific jurisdiction, as succinctly summarized in the Military
judges submission, to:

    •   Try any officer or non-commissioned member, without any restriction related
        to rank or duties;

    •   Try offenses of a military nature contemplated by the Criminal Code, whether
        committed in or outside Canada;

    •   Try any penal matter under any federal statute, whether committed in or
        outside Canada;

    •   Try a variety of persons, including civilians;

    •   Apply foreign law.

Each Court Martial has the same powers, rights and privileges as a superior court of
criminal jurisdiction in respect of numerous matters.

Courts martial have evolved over time. Through a gradual constitutional, legislative
and jurisprudential progression, the role, status, jurisdiction and functions of military
judges have come to increasingly resemble those of their civilian brethren.

Thus, in MacKay v. The Queen,3 a majority of the Supreme Court of Canada found
that the trial of a member of the Canadian Armed Forces by a Standing Court Martial
did not violate the right to equality before the law and to be tried pursuant to an


3
        [1980] 2 S.C.R. 370.
                                                                                                            4


independent and impartial tribunal pursuant to ss. 1(b) and 2(f) the Canadian Bill of
Rights.

In Généreux v. The Queen,4 this position was revisited by the Supreme Court in light
of the adoption of the Canadian Charter of Rights and Freedoms and the evolving
caselaw relating to judicial independence thereunder. While ruling certain aspects of
the military justice system unconstitutional, the Supreme Court of Canada
recognized the sui generis nature of courts martial and the need for a parallel
system of justice as found in the National Defence Act. The Supreme Court ruled
that military judges need not have precisely the same safeguards of judicial
independence as apply to civilian judges. Accordingly, the requirement of security of
tenure could be met by renewable fixed-term appointments rather than appointment
for life or age of retirement.

In Lauzon v. R.,5 the Court Martial Appeal Court of Canada ruled that the then
existing system of establishing the remuneration of military judges was
unconstitutional, paving the way for the current mechanism by which this Committee
is established.

More recently, the conclusions in Généreux have been challenged, and the Court
Martial Appeal Court has concluded that military judges, as their civilian
counterparts, must be provided security of tenure until retirement subject to removal
for cause. The Court Martial Appeal Court has aptly summarized:

        The evidence filed before the military judge indicates that the
        rationale behind Généreux, above, and Lauzon, above, no
        longer exists…

        With the evolution of time court martial courts have become
        quite different from the way they were. At General Courts
        Martial the military judge is no longer an adviser but now
        performs a role akin to a judge in the civilian courts; that is even
        more so at Standing Courts Martial... 6

From this analysis and considering the whole of the submissions of the parties on
this issue, we conclude that Courts Martial are today sui generis courts under the
umbrella of the Federal Judicial Courts system much more akin to other federally-
appointed judges, with which they share their mode of nomination, jurisdiction and
appeal process, although not all their powers, particularly in purely civilian matters
and judicial review, than provincially-appointed judges.

There are presently four military judges in Canada, including the Chief Justice.

4
         [1992] 1 S.C.R. 249.
5
         (1998), 8 Admin. L.R. (3d) 33 (C.M.A.C.)
6
         R. v. Dunphy and R. v. Parsons [2007] CMAC 1, at paras. 19-20. See also R. v. Lauzon (1998), CMAC 415
and R. v. Boivin (1998) CMAC 410.
                                                                                        5



In common with justices of the Tax Court of Canada and the Federal Court, as well
as many superior court judges, military judges must travel extensively in the
performance of their duties. Unlike any other judges in Canada, they must also
occasionally travel overseas to preside over courts martial in areas of Canadian
deployment.

5. THE ROLE OF JUDGES IN GENERAL AND OF MILITARY JUDGES IN
PARTICULAR

While dealing only with the adequacy of the Military judges’salary, as this Committee
is mandated to do, one should not minimize the fundamental role all judges play in
our free and democratic society as a “pillar of our entire justice system”7 and in
maintaining the public confidence and respect for the justice system.

In this regard, it is worth quoting Justice Gonthier’s opinion in the Therrien case,
supra at para.108:

       The judicial function is absolutely unique. Our society assigns
       important powers and responsibilities to the members of the
       judiciary. Apart from the traditional role of an arbiter which
       settled disputes and adjudicates between the rights of the
       parties, judges are also responsible for preserving the balance
       of constitutional powers between the two levels of government
       in our federal state. Furthermore, following the enactment of the
       Canadian Charter, they have become one of the foremost
       defenders of individual freedoms and human rights and
       guardians of the values it embodies.

Military justice demands no less of its judges.

Nevertheless, despite the evolution of the military justice system described above,
the fact remains that military judges have opted into a career of military service.
While fully independent of the chain of command, they remain a part of the military,
with all attendant advantages and disadvantages this brings. Their situation,
therefore, remains a unique one. As the military judges indicate in their submission,
“The Office of the Chief Military Judge is a unit of the Canadian Forces of which the
Chief Military Judge is the commander.”8

6. JUDICIAL INDEPENDENCE

The fundamental role of this Committee is to ensure judicial independence, the main
reason for the establishment of the Compensation Committees mandated by the
Provincial Judges Reference [1997] 3 R.C.S. 3 as an independent, effective and

7
       Therrien (Re), [2001] 2 S.C.R. 3 at para.109.
8
       Submission on Behalf of the Military Judges, May 9, 2008, para. 51.
                                                                                          6


objective way to avoid, among other things, political interference in the assessment
of the salary level of judges. It is also one of the criteria which this Committee must
consider in inquiring into the adequacy of the remuneration of military judges.

Upon the integrity, wisdom and independence of the judiciary depend the free rights
of men and women.

These words link the importance of an independent judiciary with the protection of
the rights of all people. It is worth noting, however, that the purpose of judicial
independence is not to benefit judges personally but to permit judges to better serve
the public good.

The United Nations Basic Principles on the Independence of the Judiciary endorsed
by the U.N. General Assembly state, in article 2:

       The judiciary shall decide matters before it impartially, on the basis of
       facts and in accordance with the law, without any restrictions, improper
       influences, inducements, pressures, threats or interferences, direct or
       indirect, from any quarter or for any reason.

In R. v. Beauregard, [1986] 2 S.C.R.56, Chief Justice Dickson characterized judicial
independence as “the lifeblood of constitutionalism in democratic societies”.

As essential as judicial independence is in a free and democratic society, it remains
a “fragile freedom” as Tom Berger’s book’s title reminds us. The erosion, be it by
reduction by inflation or other means, of one of the three core characteristics of
judicial independence: security of tenure, financial security and administrative
security will encroach upon judicial independence.9

As the Supreme Court of Canada held in the Provincial Judges Ass’n of New
Brunswick v. New Brunswick et al.10:

       The Government’s questioning and reformulation of the
       Commission’s mandate are inadequate. As we have already
       mentioned and as the Court of Appeal correctly pointed out, the
       Commission’s purpose is to depoliticize the remuneration
       process and to avoid direct confrontation between the
       Government and the judiciary. Therefore, the Commission’s
       mandate, as the Government asserts, cannot be viewed as
       being to protect against a reduction of judges salaries below the
       adequate minimum required to guarantee judicial
       independence. The Commission’s aim is neither to determine
       the minimum remuneration nor to achieve maximal conditions.
       Its role is to recommend an appropriate level of remuneration…

9
       See Valente v. The Queen, [1985] 2.S.C.R. 673, at para. 80.
10
       [2005] 2 S.C.R. 286.
                                                                                        7



This quotation answers both parties’ submissions concerning minimum and
maximum levels of remuneration. None has anything to do with an “adequate” level
of remuneration to which we now turn.

7. ADEQUACY

In the PEI Judges Reference [1997] 3 S.C.R. 3, the Supreme Court of Canada
indicated criteria similar to those applicable to our Compensation Committee,
particularly the word “adequacy”. We adopt in this regard the views expressed by
the Drouin Compensation Commission in 2000 at p. 23:

       Part of our principal mandate under the Judges Act is to
       inquire into the adequacy of the salaries of the Judiciary.
       “Adequacy is a relational term in seeking to determine its
       meaning in the context of judicial salaries, several
       questions arise. Adequate for what purpose? Adequate
       in relation to who or what? Adequate over what time
       frame? Against the background of the constitutional
       principles articulated in the PEI Reference case, we have
       concluded that the operative meaning of “adequacy”, to
       guide our work, requires us to determine what constitutes
       a fair and sufficient salary level for the judiciary taking
       into account the criteria set out under 26(1.1). What is
       required in this context is a proper judicial salary level,
       not a perfect one.

The criteria set out under 26 (i.i) are similar to those of this Committee.

The Criteria

A. Prevailing Economic Conditions in Canada

This criterion includes the state of the economy in general as well as the cost of
living as of September lst, 2007, the date to which the level of remuneration of the
military judges dates back.

On this issue, the Military judges submit the following:

   •   Canada’s financial situation is the strongest among all G-7 countries (2008
       Budget Plan Introduction) ;
   •   Economic and fiscal fundamentals in Canada are “rock solid” (Economic
       Statemnt, p. 7) ;
   •   The economy has been expanding over the last 16 years and economic
       fundamentals remain solid : the unemployment rate is at its lowest level in 33
       years and more than 400 000 jobs have been created since 2006 ;
                                                                                          8


    •   The financial situation of businesses and households is solid, as compared
        with other countries and other periods in our history ;
    •   The financial situation of the federal, provincial and territorial governments
        remains solid ;
    •   Inflation remains low, stable and predictable (2008 Budget Plan p. 11)

In conclusion, the Military judges affirm that :

•       There are no across the board decreases in government expenditures;
•       The economy remains vigorous;
•       There is no substantial barrier to the government’s capacity to pay;
•        The Canadian economy can easily sustain the payment of an adequate
         salary level;
•       The salary of the military judges has a negligible impact on the government
        budget.

For its part, the Government of Canada submits :

    •   In its Economic Statement of October 30, 2007, the Government has
        incorporated lower private sector forecasts of gross domestic product (GDP)
        growth of 2.4% for 2008 and 2.7% for 2009 in its fiscal projections for those
        years;

    •   Overall, there remained some downside risk to the Canadian economic
        outlook relating to weaker U.S. and global growth and ongoing financial
        uncertainty. Indeed, the these downside risks have to some extent
        materialized. Accordingly. in its Budget Plan of February 26, 2008,growth
        forecasts were consequently reduced to 1.7% for 2008 and 2.4% for 2009,
        while the World Economic Outlook report published by the International
        Monetary Fund further downgrades growth projections, forecasting Canadian
        GDP growth of only 1.3% for 2008 and 1.9% for 2009;

    •   The contraction in economic growth has led the government to “[keep]
        spending focused and disciplined, with spending in 2007-2008 and 2008-
        2009 below the track set out in the Budget 2007 in relation to the overall size
        of the economy.”

The government states that inflation has remained low over the past four years, and
is expected to remain so, with forecasts of 1.8% for 2008 and 1.9% inflation for
2009. In this regard, the wages of military judges over the past four years has
significantly outpaced the rate of inflation as well as the salaries of other wage
earners paid from the federal public purse, including the public service in general,
General Service Officers, Senior Officers, “EX”-level federal civil servants, and
superior court judges appointed pursuant to s. 96 of the Constitution Act, 1867.
                                                                                            9


A good starting point for our analysis is the October 30, 2007 Government Economic
Statement tabled in the House of Commons by the Minister of Finance; however, we
must keep in mind that the process must be based upon objective criteria and not
government discretion. That statement forecasts real economic growth and the
measures the government is taking to offset potential risks. Since then, the situation
has evolved due to the housing and mortgage crisis in the U.S. but there is nothing
in the evidence before us which indicates that the Canadian economy is presently
unable to sustain an adequate level of remuneration for the military judges, taking
into consideration that there are only four military judges, including the Chief Justice,
whose remuneration are in issue here, as realistically pointed out by the government
of Canada: “With only four military judges, the impact of any increase of any amount
will have but a modest impact on the federal treasury in absolute terms.”11

This, of course, should not detract us from the application of the “adequacy” criteria.
The fact that increases in salary are affordable, while not devoid of relevance, does
not in itself militate in favour of such increases. Rather, the state of the economy
and the relative pace of economic growth or contraction may be suggestive of the
appropriate relative increase or decrease in compensation of all public servants,
including judges civilian and military.

B. Financial Security

In the PEI Judges Reference, supra, the Supreme Court of Canada identified three
components of judicial financial security: the requirement of an independent,
objective and effective Commission, the avoidance of negotiations between the
judiciary and the executive and the requirement that salaries not fall below an
acceptable minimum. We have already dealt with the first two procedural
requirements.

On this issue, the government submits that the salaries of military judges have
clearly not fallen below an acceptable minimum, being presently set, as
recommended by the 2004 Compensation Committee at $ 186,618.00 which the
Government suggests should be increased annually “to allow for a cost of living
adjustment until the next review.”12

The military judges, on the other hand, propose the same level of salary as that of
superior court judges (presently set at $260,000 but subject to the Quadriennal
Compensation Commission recommendations, which proposes a salary of $264,300
retroactive to April 1, 2008, with annual increases of 2% above current indexation for
the next four years).

While the present salary of military judges may be sufficient, as the government
asserts, to meet the constitutional requirement of ensuring judicial independence per
se, the task of this Committee is to determine the “adequate” level of military judges’

11
       Submission of the Government of Canada, para. 49.
12
       Ibid., para. 6.
                                                                                            10


compensation. To that end, the Committee must take into account a number of
factors including the need to attract outstanding officers from their ranks and the
Reserve, the role and level of responsibility of military judges, the historical
background and traditions, their place in the hierarchy in the Canadian judiciary as
well as other relevant objective criteria.

We have already discussed the necessity to maintain the public confidence in the
independence of the judiciary and to that end the importance of ensuring its financial
security. We will now move to consider other important factors.

C. The Need to Attract Outstanding Officers as Military Judges

There is no dispute that the remuneration of military judges must be such that it must
attract the best candidates to apply for military judiciary and that it must reflect the
nature and status of the office.

As far as the government is concerned, the present level of salary does attract first-
class military judges whereas the military judges point out the low number of
recommended and highly recommended candidates as well the difficulty in attracting
candidates from the Reserve force. Both produced charts to illustrate their point of
view.

In our view, those figures are not determinative of this issue. Salary is not the sole
factor in attracting outstanding candidates to the judiciary in general neither to the
military justice in particular. The high level of excellence required from military
judges may be a factor to reduce the pool of available candidates particularly from
the Reserve. They include the need to:

•      be outstanding members of the Bar of at least 10 years standing;
•      be outstanding members of the military;
•      possess sound judgment;
•      possess extensive knowledge of criminal law, military law and
       discipline offences;
•      possess personal characteristics of competence, experience, honesty,
       integrity and social awareness upon which they are assessed.

The military judges note that only 11 individuals applied for the position of military
judge in 2005 and again in 2008. Five of these candidates were “highly
recommended” while three were “recommended.” The military judges go on to point
out that only three members from the reserve force applied for the position in 2005
and only 2 in 2008, which, the military judges state, is indicative of ongoing difficulty
in attracting candidates outside the regular force.

The government of Canada responds that the percentage of candidates rated
“highly recommended” or “recommended” in fact compares favourably to the
experience of the civilian side.
                                                                                             11



In our view, the evidence in relation to this criterion is essentially neutral. As with
civilian judges, salary is not the sole determinant as to whether or not an individual
chooses to seek judicial appointment. Nor can we conclude that the relative lack of
candidacies from outside the regular force correlates to the current level of income.
Other factors, include attendant, lifestyle changes, may be of equal or greater
significance.

Nevertheless, there can be no doubt that the level of compensation must be such
that it will not deter, but indeed encourage, outstanding officers to apply for the
position.

D. Other Relevant Factors

Under this heading, the Committee is of the view that are relevant the
responsibilities, the role and functions of the different actors in the judicial system as
well as the place of the military justice in the hierarchy of the judiciary.

As previously mentioned, the military justice is more akin to the federal justice
system of which it shares both in its nomination, territorial jurisdiction, areas of
competence and appeal process while at the same time being a sui generis
specialized court.

This being said, we are of the view that a broad inquiry into the different actors of the
federal judicial system is warranted to give us the range within which the military
justice inserts itself. This, of course, should not assume that parity should be the
goal of that exercise. It is not.

We are grateful to both parties for having given us the necessary information to
provide a range of useful comparators to help us assess the adequacy of military
judges remuneration within that range.

Although not particularly necessary for our purposes, the parties have included the
information concerning the salaries of provincial judges in the different Canadian
provinces which, of course, are established in relation to their respective economic
situation which may be different from the economic situation of the Canadian
government and are also in direct relation to the roles and responsibilities of
provincial courts which are also at a variance from the role and responsibilities of
judges of federal nomination and jurisdiction.

NWT                          $209,246
YUKON                        $199,901
B.C.                         $202,356
ALBERTA                      $220,000
SASKATCHEWAN                 $198,900
MANITOBA                     $178,230
                                                                                         12


ONTARIO                          $227,735
QUEBEC                           $191,267
NEW BRUNSWICK                    $174,946
P.E.I.                           $196,144
N.S.                             $180,708
N.L.                             $173,591


More relevant for our purposes are the salaries of officers and high ranking officials
in the military:

Colonel                          $115,440-$129,096
Brigadier-General                $136,608-$147,325
Major-General                    $157,164-$184,596
Lieutenant-General               $195,348-$211,500
Chief of Defence Staff           $199,700 to $234,000

Legal Officers:

Lieutenant-Colonel     $128,256-$136,296
Colonel                $144,924-$171,300
Brigadier-General      $160,992-196,404
Judge Advocate General $260,000**

** According to the military judges, the salary of the current JAG is by contractual
agreement tied to that of superior court judges. The JAG is a Governor-in Council
appointment

Similarly, we have the benefit of information as to the remuneration of senior federal
civil servants, at the executive, deputy minister and senior deputy minister levels,
with the caveat that “although they must ultimately be paid from public monies,
judges are not civil servants. Civil servants are part of the executive; judges, by
definition, are independent of the executive”.13 That does not mean, however, that
the salaries of military judges must be set without any regard to the remuneration
levels within the senior ranks of the government or that they should be permitted to
fall materially behind the remuneration available to senior individuals within the
government.14

EX5 (incl. Assistant Deputy Ministers) $155,100-$182,500
Deputy Minister 1                      $173,600-204,200
Deputy Minister 2                      $199,700-234,900
Deputy Minister 3                      $223,600-263,000
Deputy Minister 4                      $250,300-294,500


13
       PEI Judges Reference, supra, at para. 143.
14
       Adams Report, supra at p. 22.
                                                                                             13

(Excluding “at risk” compensation, with maximums of 11.5% to 32.4% of salary, and which in
practice have averaged in the range of approximately 10.5%-16% at the DM3 and DM4
levels since 2004, for an estimated average total remuneration of $292,235 for DM3s and
$332,199 for DM4s)

Although this Committee is not in any way bound by the recent reports in relation to
the compensation of Federal Court prothonotaries and of all other federally-
appointed judges, it is of interest to note their conclusions. The report of the
Honorable George Adams, Q.C. on the salary and benefits of six prothonotaries
appointed under section 12 of the Federal Court Act recommends their salary be set
at 80% of a federal court judge salary, retroactive to April 1, 2004 ( plus allowances
for which we are not concerned here) amounting to approximately a salary of
$203,000.00, while as noted above, the Block Commission has recommended “that
the salary of puisne judges be set at $264,300 effective April 1, 2008.”

In summary, the salaries from the above charts vary from a range of approximately
$173,000-$228,000 for provincial court judges (average of $196,085), to a range of
$115,000-$234,000 for senior military officers, to a range of $128,000-$260,000 for
senior legal officers, to a range of $155,000 to $332,000 for senior civil servant, to a
present salary of $260,000 for federally-appointed superior court judges.

CONCLUSION

The parties have both agreed that the previous Committees’ determination that the
salary of military judges should not be tied directly to that of the average of provincial
court judges was not an appropriate approach to or method for the determination of
adequate compensation of military judges. This Committee agrees. Among other
problems, this would constitute an abdication of the responsibility of this Committee
to make its own determination, by linking the outcome to the conclusions of the
various other judicial compensation committees in Canada. This would also entail a
degree of circularity. It is up to each such judicial compensation committee to make
its own assessment, rather than to predicate its conclusion on those of others.
Furthermore, the salary of military judges cannot be determined in reference to any
one single comparator.

The present Committee, having regard to the criteria set out in the mandate of this
Committee, the evidence before us, the arguments of both parties which we have
reviewed in detail, and the position of military judges within the Canadian judicial
scheme, arrives at the conclusion that after consideration of all the relevant criteria
and objective factors, an adequate salary for the military judges should be set at
$225,000, as of September 1, 2007.

Little evidence was submitted as to the appropriate measure of indexation to protect
this salary level from inflation. Given that the Industrial Aggregate Index has been
deemed to be appropriate in relation to other federally-appointed judges, and as was
endorsed by the first Military Judges Compensation Committee, we would
                                                                                                14


recommend that this measure be used to adjust the salary of the military judges on
an annual basis.

Our recommendations, to use the terms of the McLennan Commission (2004), “are
for a level of compensation that will not deter the best and the brightest from seeking
judicial office and that should ensure that the level of compensation provided to
puisne judges is not so great that the office will be sought after for its monetary
rewards alone. Rather, it should appeal to those highly qualified persons of maturity
and judgment who seek to provide a valuable public service to their country. In
other words, we are of the view that “too much” would not be in the public interest as
“too little” is obviously not in the public interest.

Other Matters

a) Chief Military Judge

In its 2004 Report, the previous Committee recommended that the Chief Military
Judge receive a premium of 3% in light of the additional duties incumbent on the
occupant of this position. The military judges proposed that this be increased to 7%,
noting that the average differential in regard to federally-appointed judges and chief
justices or associate chief justices is some 10%, while the differential among
provincial court judges, other than in P.E.I., is some 5-12%.

In our view, there is no basis for disturbing the proposal of the previous Committee.
In this regard, the relatively small size of the military judiciary (four judges in total) is
to be considered. Accordingly, we recommend that the salary of the Chief Military
Judge be supplemented by an amount equal to 3% of that of the puisne military
judges.

b) Discretionary Expenditures

In addition, the military judges have proposed that they be provided an allowance for
certain expenses, including attendance at conferences. There was inadequate
evidence presented on this issue to allow us to recommend such an allowance.
During the oral hearings, the Chief Military Judge did indicate that his office is
allotted a general operation budget, a portion of which is as a matter of practice
dedicated to covering expenses relating to discretionary travel and continuing
judicial education. He submitted that each judge should be provided an individual
amount to be used in their discretion and not subject to the approval of the Chief
Military Judge.

We do not agree that it is necessary for each individual judge to be allotted a distinct
allowance for these purposes. Based on the limited information available, it would
appear that the present budgeting is adequate to meet the needs of discretionary
expenditures. There is no constitutional impediment to such a budget being
managed at the discretion of the Chief Military Judge.
                                                                                       15



c) Costs

The military judges also raised the issue of the costs of their legal representation
before the Committee. In this regard, they note that their numbers do not permit
them to pool a significant amount of resources to dedicate to legal representation
before this Committee.

Contrary to the Judges Act, neither the National Defence Act nor the Queens
Regulations & Orders thereunder provide for compensation in relation to
representation before the judicial compensation committee.

Regardless, we are of the opinion that it would be appropriate for the federal
government to provide reasonable compensation for legal representation. We were
advised at the hearing that an amount of $60,000 was requested by the military
judges for this purpose, and has been paid by the Government of Canada. As a
matter of principle we support the decision of the government to provide an amount
sufficient for legal representation before this Committee.

The Hon. Guy Richard, Chair
The Hon. Claire L’Heureux-Dubé, Q.C.
The Hon. David Gruchy, Q.C.


ADDENDA:

While I am in complete agreement with my colleagues of the Military Compensation
Committee as to the adequacy at this time of the recommended remuneration of the
Military judges in the present Report, I wish to make an additional point.

As pointed out in the attached Report, there have been a number of changes to the role,
responsibilities and status of the military judges since the 1992 Supreme Court of
Canada judgment in Généreux v. The Queen [1992] 1R.C.S. 259 as well as its
subsequent follow up in Bill C-25 and further legislative initiatives, in addition to the
decisions of R. v. Lauzon (1998), 8 Admin. L.R. (3D) 33 (C.M.A.C.) and R. v. Boivin
(1998) 245 N.R. 341 (C.M.A.C.) and the Report of the First Independent Review of the
provisions and of the operation of Bill C-25 by former Chief Justice Lamer. I note in
passing Bill C-45 to amend the National Defence Act which had its first reading on
March 3, 2008 and deals with certain aspects of military justice.

As a consequence, “ Military Judges in Canada are now judges in every sense and they
play a full role in ensuring respect for the rule of law and the protection of individual
freedoms and rights” (Submission by the Military Judges to the Military Judges
Compensation Committee, Dec. 15, 2003 at p. 8).
                                                                                             16


Military justice plays a vital role in our country particularly at this time of involvement of
Canada in conflicts outside its borders. The quality of its judges and their total
independence is of the utmost importance both for the justice it renders as well as the
international reputation of the Canadian military justice.

Given that military judges are nominated by the federal government and that their
jurisdiction extends to the whole of the country and even beyond, it defies logic and
policy in my view that, as far as their remuneration is concerned, military judges are not
considered judges of the federal court as is another specialized court, the Tax Court of
Canada. The judges of those courts have an extra-provincial jurisdiction, hear matters
of federal jurisdiction, travel extensively and hear cases in all provinces. This is true
also of Military judges who, in addition, are empowered to, and do, conduct hearings
outside Canada should the cases so require.

This difference in remuneration of military judges ( which are the only ones among all
federally appointed judges to be treated in such a way) as regards federal court judges
may give rise to the perception that they are “second class” judges and do not deserve
the same respect and consideration as federal court judges. In my view, a judge is a
judge is a judge and there is absolutely no logic in distinguishing between them as far
as their remuneration is concerned, given their otherwise similarities in nomination and
jurisdiction. Similarly, there is no justification at a policy level to make such distinctions.

On a more pragmatic level, there would be an obvious advantage for all concerned to
have one and only one quadrennial compensation committee to deal with all federally
appointed judges, including the prothonotaries of the federal court which are the subject
of the recent special advisory report of the Honorable George Adams.

These points have of course been made before us by the military judges. The
government of Canada, for its part, has underlined the specialized nature of the military
justice, its military tradition and the difference in jurisdiction between both the Tax Court
and the Federal Court and the Military Court. These are valid points but, in my view,
they do not touch on the logic of the system for federally appointed judges. For
example, grosso modo, the Tax court has no jurisdiction in criminal matters and the
Military court has no jurisdiction in civil matters. The inescapable conclusion is that both
are specialized courts within the federal court system and it does not displace the fact
that judges of both courts are nominated by the federal government to deal with federal
matters with full territorial jurisdiction and whose both decisions are appealable to the
Federal court, called courts martial as regards the Military court. In my view, these are
the proper criteria which militate in favour of a unified federal court system and a similar
remuneration for all judges of the federal court system.

CLAIRE L’HEUREUX-DUBÉ
                                                                                      17


Mme L'Heureux-Dube has kindly given me the opportunity to read her addendum to the
Military Judges Compensation Committee report.

During our review of military judges' compensation it appeared to me that there are
anomalies in the salaries of federal judicial appointees, which may or may not be
logical.

I agree with Mme L'Heureux-Dube that the role of the Quadrennial committee
appointed pursuant to the Judges Act R.S.C. 985 c. J-1 should be expanded to review
the compensation of all federally-appointed judges and judicial officers.

DAVID R. GRUCHY


September 29, 2008

								
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